Death row ruling may suspend U.S. executions

Supreme Court Review; Case to test if injection method is constitutional

Sheldon Alberts
CanWest News Service

Wednesday, September 26, 2007

WASHINGTON - If the Commonwealth of Kentucky had had its way, Ralph Baze would have been dead this morning, executed by lethal injection for the murder of two police officers more than 15 years ago.

But the 52-year-old death row inmate, originally scheduled to die last night, instead celebrated news that the U.S. Supreme Court would hear his appeal in a high-profile case that could force the suspension of capital punishment in America.

In a surprise decision, the high court justices agreed to review the claim by Baze and a fellow Kentucky death row inmate, Thomas Clyde Bowling Jr., that lethal injection violates the U.S. Constitution's protections against cruel and unusual punishment.

"This is huge news which could, and probably should, lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling," said Douglas Berman, an Ohio State University law professor and author of a popular legal blog.

The decision to take up the Kentucky cases marks the first time in 129 years that the Supreme Court will hear a test of a method of execution on constitutional grounds.

The legality of capital punishment itself is not being challenged, only the question of whether the administration of a lethal three-drug cocktail causes death row inmates unnecessary or unbearable pain.

Nevertheless, the potential consequences of the upcoming Supreme Court ruling are huge. Thirty-six of the 38 American states that allow capital punishment use the same combination of drugs to put condemned prisoners to death.

"I think it is necessarily going to be a nuanced ruling," said Prof. Berman. "It is unlikely to be a curt 'You can't do lethal injection because it always will cause pain.' "

In the 30 years since the death penalty was reinstated in the American states have overwhelmingly turned to lethal injection as a replacement for hanging, gassing, shooting and electrocution, forms of capital punishment deemed inhumane. Of 1,097 executions since 1977, lethal injections have been used 927 times, according to the Death Penalty Information Center.

Two of the nation's largest states, Florida and California, abruptly halted lethal injection executions in 2006 amid a swirl of controversy about the procedure.

In Florida, former governor Jeb Bush took action after it took 34 minutes to kill convicted murderer Angel Nieves Diaz because of a botched needle placement.

In California, Governor Arnold Schwarzenegger ordered revisions to the state's lethal injection procedure after a state judge found a "pervasive lack of professionalism" in carrying out the death sentences.

Most American states carry out the death penalty by injecting inmates first with sodium pentathol, a fast-acting barbiturate that knocks prisoners unconscious. They are then given a dose of pancuronium bromide to stop their breathing and, finally, potassium chloride to stop their heart.

Baze was originally scheduled for execution yesterday, but won a reprieve earlier this month as he awaited news of his appeal.

Lawyers for Baze and Bowling argued last year before Kentucky's Supreme Court that death row inmates are potentially exposed to horrifying pain if given too low a dose of the first drug. The court ruled against them because of "conflicting" evidence about whether prisoners feel any pain.

There was insufficient evidence that lethal injection "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death," the threshold of suffering prohibited by the Constitution, according to the court.

But Baze told The New York Times in 2005: "From all accounts that I've read, the stuff is like liquid fire going into your veins ... Taking my life should be enough ... To make me have to live the last few minutes of it in a living hell is beyond comprehension."

As symbols of the anti-death penalty movement, Baze and Bowling hardly make for sympathetic figures.

Baze was convicted of shooting an eastern Kentucky sheriff and deputy three times in the back when the police officers were serving a fugitive warrant against him.

Bowling murdered a husband and wife, and shot their two-year-old son, outside the couple's dry cleaning business in Lexington, Ky.

The Supreme Court's decision to hear their case is "interesting and not insignificant," says Prof. Berman. "To the extent that they have picked one involving two less than sympathetic fellows may make it easier for them to come up with a less than sympathetic ruling," he said.